Escrow Agreement
This
Escrow Agreement (the “Agreement”), dated as of February 14,
2008 (the “Closing
Date”), by and among (i) Best Energy Services, Inc., a Nevada corporation (“Buyer”),
(ii) Xxxxxx X. Xxxxxx, a resident of Moab, Utah (“Seller”),
and (iii) JPMorgan Chase Bank, N.A., a national banking
association, as escrow agent (“Escrow
Agent”).
This is
the Escrow Agreement referred to in that certain Stock Purchase Agreement dated
February 14, 2008 (the “Purchase
Agreement”), by and among Buyer and Seller. Capitalized terms used in
this Agreement without definition shall have the respective meanings given to
them in the Purchase Agreement.
In
consideration of the premises and the mutual obligations and covenants set forth
herein, and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1. Establishment
of Escrow.
(a) Buyer is
depositing with Escrow Agent $500,000 (the “Escrow
Amount”), representing the Indemnification Escrow Amount (as increased by
any earnings thereon and as reduced by any disbursements, amounts withdrawn
hereunder, or losses on investments, the “Escrow
Fund”), in immediately available funds. Upon receipt, the Escrow Agent
shall acknowledge receipt thereof.
(b) Buyer and
Seller hereby appoint the Escrow Agent as their escrow agent for the purposes
set forth herein, and the Escrow Agent hereby accepts such appointment under the
terms and conditions set forth herein.
2. Investment
of Funds. During the term of this Agreement, the Escrow Fund
shall be invested and reinvested by the Escrow Agent in the investments
indicated on Schedule
1. The Escrow Agent shall have the right to liquidate any
investments held in order to provide funds necessary to make required payments
under this Agreement. The Escrow Agent shall have no liability for
any loss sustained as a result of any investment in an investment indicated on
Schedule 1 or
any investment made pursuant to the joint written instructions of Buyer and
Seller (“Joint Written
Instructions”) or as a result of any liquidation of any investment prior
to its maturity or for the failure of Buyer and Seller to give the Escrow Agent
Joint Written Instructions to invest or reinvest the Escrow Fund.
3. Disbursements
from Escrow Fund.
(a) Claims
for indemnification or disbursement from the Escrow Fund by any Indemnified
Person or Seller under the Purchase Agreement shall be made against the then
remaining amount of the Escrow Fund only in accordance with the Purchase
Agreement and this Agreement. In the event that from time to time (i) any
Indemnified Person is entitled to indemnification from the Escrow Fund pursuant
to the Purchase Agreement, or (ii) Seller is entitled to a disbursement of all
or a portion of the Escrow Fund pursuant to the Purchase
Agreement,
Buyer and Seller shall execute and deliver to the Escrow Agent Joint Written
Instructions setting forth (A) the amount of such indemnification payment or
distribution (to the extent of the balance of the Escrow Fund remaining
therefor), together with (B) a calculation of the cumulative Net Escrow Income
(as defined in Section
7) earned on such amount, (C) the Income Tax Amount (as defined in Section 7) with
respect thereto, and (D) the recipients thereof. In the event that any
Indemnified Person or Seller is entitled to a payment pursuant to the preceding
sentence, each such recipient also shall be entitled to a disbursement of the
portion of the Net Escrow Income earned on the amount of such payment being made
to such Indemnified Person or Seller, minus the Income Tax Amount with respect
to such Net Escrow Income, which shall be paid to Buyer in accordance with Section 7.
Notwithstanding such Joint Written Instructions, the Escrow Agent shall report
and, as required, withhold from any payments or disbursements made pursuant to
this Agreement from the Escrow Fund, any taxes as it determines may be required
by any law or regulation then in force. The
Escrow Agent shall have no obligation to investigate, inquire, examine or assist
in any manner whatsoever, the compliance by Buyer or Seller with the terms of
this Agreement that incorporate by reference provisions of the Purchase
Agreement that apply to the other parties' obligations or limitations of
liability to each other that do not relate to obligations of the Escrow Agent
under this Agreement.
(b) Upon
receipt of any Joint Written Instructions, the Escrow Agent shall, as soon as
practicable and in no event later than three Business Days (as defined in
Section 8) after the receipt thereof, disburse the amounts from the Escrow Fund
to the Indemnified Person and/or Seller specified in such Joint Written
Instructions to be so paid (to the extent of the then-remaining balance of the
Escrow Fund), by wire transfer of immediately available funds pursuant to
payment instructions (i) furnished by Buyer with respect to any payment
specified in such Joint Written Instructions to be made to any Indemnified
Person and any Income Tax Amount, or (ii) furnished by Seller with respect to
any payments specified in such Joint Written Instructions to be made to
Seller.
4. Termination
of Escrow. This Agreement shall terminate, and the then
remaining funds in the Escrow Fund shall be paid out, pursuant to Joint Written
Instructions of Buyer and Seller, subject to Sections 5(b) and
5(j)
hereof.
5. Duties
of Escrow Agent.
(a) Escrow
Agent shall not be under any duty to give the Escrow Fund held by it hereunder
any greater degree of care than it gives its own similar property and shall not
be required to invest any funds held hereunder except as directed in this
Agreement.
(b) Escrow
Agent shall not be liable for actions or omissions hereunder, except for its own
gross negligence or willful misconduct and, except with respect to claims based
upon such gross negligence or willful misconduct that are successfully asserted
against Escrow Agent. Buyer and Seller shall jointly and severally
indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) and
its affiliates and their respective assigns, directors, officers, managers,
attorneys, accountants, experts agents and employees (the “indemnities”)
from and against any and all losses, liabilities, claims, actions, damages,
penalties, judgments, settlements, actions, suits, proceedings, litigation,
investigations, cost and expenses, including reasonable attorneys’ fees and
disbursements, and experts and their staffs and all expense of document
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location,
duplication and shipment (collectively “Losses”)
arising out of and in connection with (a) the Escrow Agent's execution and
performance of this Agreement, tax reporting or withholding, the enforcement of
any rights or remedies under or in connection with this Agreement, or as may
arise by reason of any act, omission or error of the indemnitee, except in the
case of any indemnitee to the extent that such Losses are finally adjudicated by
a court of competent jurisdiction to have been primarily caused by the gross
negligence or willful misconduct of such indemnitee, or (b) its following any
instructions or other directions, whether joint or singular, from the Buyer and
Seller, except to the extent that its following any such instruction or
direction is expressly forbidden by the terms hereof. Without
limiting the foregoing, Escrow Agent shall in no event be liable in connection
with its investment or reinvestment of any cash held by it hereunder in good
faith, in accordance with the terms hereof, including, without limitation, any
liability for any delays (not resulting from its gross negligence or willful
misconduct) in the investment or reinvestment of the Escrow Fund or any loss of
interest incident to any such delays. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Escrow Agent be liable for
special, incidental, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow Agent
has been advised of the likelihood of such loss or damage and regardless of the
form of action. The Buyer and Seller hereto acknowledge that the foregoing
indemnities shall survive the resignation, replacement or removal of the Escrow
Agent or the termination of this Agreement. The Buyer and Seller
hereby grant the Escrow Agent a lien on, right of set-off against and security
interest in, the Escrow Fund for the payment of any claim for indemnification,
expenses and amounts due hereunder. The obligations contained in this Section 5(b) shall
survive the termination of this Agreement and the resignation, replacement or
removal of the Escrow Agent.
(c) Escrow
Agent shall be entitled to rely upon any order, judgment, certification, demand,
notice, instrument or other writing delivered to it hereunder without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of the service thereof. Escrow Agent may
act in reliance upon any instrument or signature believed by it to be genuine
and may assume that the person purporting to give receipt or advice or make any
statement or execute any document in connection with the provisions hereof has
been duly authorized to do so. Escrow Agent may conclusively presume that the
undersigned representatives of Buyer and Seller have full power and authority to
instruct Escrow Agent on behalf of that party unless written notice to the
contrary is delivered to Escrow Agent. The Escrow Agent shall neither
be responsible for, nor chargeable with, knowledge of, nor have any requirements
to comply with, the terms and conditions of any other agreement, instrument or
document between the Buyer and Seller, in connection herewith, if any, including
without limitation the Purchase Agreement, nor shall the Escrow Agent
be required to determine if any person or entity has complied with any
such agreements, nor shall any additional obligations of the Escrow
Agent be inferred from the terms of such agreements, even though reference
thereto may be made in this Agreement. In the event of any conflict
between the terms and provisions of this Agreement, those of the Purchase Agreement, any schedule or exhibit attached to the
Agreement, or any other agreement among the Buyer and Seller, the terms
and conditions of this Agreement shall control.
(d) Escrow
Agent may act pursuant to the advice of its counsel with respect to any matter
relating to this Agreement and shall not be liable for any action taken or
omitted by it in good faith in accordance with such advice.
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(e) Escrow
Agent does not have any interest in the Escrow Fund deposited hereunder, but is
serving as escrow holder only and has only possession thereof. Any payments of
income from the Escrow Fund shall be subject to withholding regulations then in
force with respect to United States taxes. Buyer and Seller will provide Escrow
Agent with appropriate Internal Revenue Service Forms W-8 and W-9 for tax
identification number certification, or nonresident alien certifications. This
Section 5(e)
and Section
5(b) shall survive notwithstanding any termination of this Agreement or
the resignation or removal of the Escrow Agent.
(f) Escrow
Agent makes no representation as to the validity, value, genuineness or
collectability of any security or other document or instrument held by or
delivered to it.
(g) Escrow
Agent shall not be called upon to advise any party as to the wisdom in selling
or retaining or taking or refraining from any action with respect to any
securities or other property deposited hereunder.
(h) Escrow
Agent (and any successor Escrow Agent) may at any time resign as such by
delivering the Escrow Fund to any successor Escrow Agent jointly designated in
writing by Buyer and Seller, or to any court of competent jurisdiction,
whereupon Escrow Agent shall be discharged of and from any and all further
obligations arising in connection with this Agreement. The resignation of Escrow
Agent will take effect on the earlier of (i) the appointment of a successor
(including a court of competent jurisdiction) or (ii) the day which is 30 days
after the date of delivery of its written notice of resignation to Buyer and
Seller. If, at that time, Escrow Agent has not received a designation of a
successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall
be to retain and safeguard the Escrow Fund until receipt of (x) a designation of
successor Escrow Agent or Joint Written Instructions, or (y) a final,
non-appealable order of a court of competent jurisdiction.
Any
entity into which the Escrow Agent may be merged or converted or with which it
may be consolidated, or any entity to which all or substantially all the escrow
business may be transferred, shall be the Escrow Agent under this Agreement
without further act.
(i) In the
event of any disagreement between the other parties hereto resulting in adverse
claims or demands being made in connection with the Escrow Fund or in the event
that Escrow Agent is in doubt as to what action it should take hereunder, Escrow
Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have
received (i) a final, non-appealable order of a court of competent jurisdiction
directing delivery of the Escrow Fund, or (ii) Joint Written Instructions
directing delivery of the Escrow Fund, in which event Escrow Agent shall
disburse the Escrow Fund in accordance with such order or Joint Written
Instructions. Any court order shall be accompanied by a legal opinion by counsel
for the presenting party satisfactory to Escrow Agent to the effect that the
order is final and non-appealable. Escrow Agent shall act on such court order
and legal opinion without further question. The Buyer and Seller
agree to pursue any redress or recourse in connection with any dispute without
making the Escrow Agent a party to the same.
(j) Buyer and
Seller shall jointly and severally pay Escrow Agent compensation (as payment in
full) for the services to be rendered by Escrow Agent hereunder in the amount
of
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Two
Thousand Five Hundred Dollars ($2,500) annually, as shown Schedule 3 hereto, and
agree to reimburse Escrow Agent for all reasonable and documented expenses,
disbursements and advances incurred or made by Escrow Agent in performance of
its duties hereunder (including reasonable fees, expenses and disbursements of
its counsel). Any such compensation and reimbursement to which Escrow
Agent is entitled shall be borne 50% by Buyer and 50% by Seller. All invoices
for any such compensation or reimbursement shall be sent to Buyer and to
Seller. The Buyer and Seller hereby grant the Escrow Agent a lien on,
right of set-off against and security interest in, the Escrow Fund for the
payment of any claim for compensation, expenses and amounts due
hereunder. The obligations contained in this Section 5(j) shall
survive the termination of this Agreement and the resignation, replacement or
removal of the Escrow Agent.
(k) No
printed or other matter in any language (including, without limitation,
prospectuses, notices, reports and promotional material) that mentions Escrow
Agent’s name or the rights, powers or duties of Escrow Agent shall be issued by
or on behalf of Buyer or Seller unless Escrow Agent shall first have given its
specific written consent thereto.
(l) The other
parties hereto authorize Escrow Agent, for any securities held hereunder, to use
the services of any United States central securities depository it reasonably
deems appropriate, including, without limitation, the Depository Trust Company
and the Federal Reserve Book Entry System.
(m) In the
event funds transfer instructions are given (other than in writing at the time
of execution of this Agreement), whether in writing, by telecopier or otherwise,
the Escrow Agent is authorized to seek confirmation of such instructions by
telephone call-back to the person or persons designated on Schedule 2 hereto,
and the Escrow Agent may rely upon the confirmation of anyone purporting to be
the person or persons so designated. Each funds transfer instruction shall be
executed by an authorized signatory, a list of such authorized signatories is
set forth on Schedule
2. The undersigned representatives of Buyer and Seller are each
authorized to certify that the signatories for Buyer and Seller, respectively,
on Schedule 2 are authorized
signatories. The individuals authorized to give or confirm funds transfer
instructions may be changed only in a writing actually received and acknowledged
by the Escrow Agent. The Escrow Agent and the beneficiary’s bank in any funds
transfer may rely solely upon any account numbers or similar identifying numbers
provided by Buyer or Seller to identify (i) the beneficiary, (ii) the
beneficiary’s bank, or (iii) an intermediary bank. The Escrow Agent may apply
any of the Escrow Fund for any payment order it executes using any such
identifying number, even when its use may result in a person other than the
beneficiary being paid, or the transfer of funds to a bank other than the
beneficiary’s bank or an intermediary bank designated. The parties to this
Agreement acknowledge that these security procedures are commercially
reasonable. Buyer and Seller agree that repetitive or standing settlement
instructions will be effective as the funds transfer instructions of Buyer and
Seller, whether or not authorized, if such settlement instructions are verified
pursuant to the security procedure provided herein or such other security
procedure that the Escrow Agent, Buyer and Seller may agree to.
(n) Section
326 of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT
Act”)
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requires
the Escrow Agent to implement reasonable procedures to verify the identity of
any person that opens a new account with it. Accordingly, the Buyer
and Seller acknowledge that Section 326 of the USA PATRIOT Act and the Escrow
Agent’s identity verification procedures require the Escrow Agent to obtain
information which may be used to confirm the Parties identity including without
limitation name, address and organizational documents (“identifying
information”). The Buyer and Seller agree to provide the Escrow Agent with
and consent to the Escrow Agent obtaining from third parties any such
identifying information required as a condition of opening an account with or
using any service provided by the Escrow Agent.
6. Limited
Responsibility. This Agreement expressly sets forth all the
duties of Escrow Agent with respect to any and all matters pertinent hereto. No
implied duties or obligations shall be read into this Agreement against Escrow
Agent. Escrow Agent shall not be bound by the provisions of any agreement among
the other parties hereto except this Agreement.
7. Ownership
for Tax Purposes, Tax Distributions. The Escrow Agent shall account for
the Escrow Fund in a manner that separately records the interest and other net
income received or losses suffered in respect thereof (including amounts earned
thereon) through the end of each calendar month (collectively, the “Net Escrow
Income”), and shall send a monthly statement with the amount of Net
Escrow Income to Buyer and Seller within ten days after the end of each calendar
month and within ten days of any written request for such information from
either Buyer or Seller. Any discrepancies in any such account statement shall be
noted by Parties to Escrow Agent within thirty (30) calendar days after receipt
thereof. Failure to inform Escrow Agent in writing of any
discrepancies in any such account statement within said thirty (30) day period
shall conclusively be deemed confirmation of such account statement in its
entirety. For income tax purposes, Buyer shall be treated as owning
the Escrow Fund for so long as it remains in the Escrow Account and shall take
into account all items of income, gain, deduction, loss and credit, shall report
the amount of such Net Escrow Income to the appropriate taxing authorities and
shall pay or caused to paid the income taxes that are due and payable on the Net
Escrow Income. No later than (i) the date of any payment from the Escrow Fund,
and (ii) 30 days following the end of each calendar year quarter, the Escrow
Agent shall upon written instructions from Buyer pay to Buyer an amount equal to
40% of the cumulative Net Escrow Income earned through such date less the
amounts previously distributed to Buyer pursuant to this Section 7 (any such
amount, an “Income Tax
Amount”). Buyer and Seller acknowledge that all payments made
pursuant to this Agreement from the Escrow Fund shall be subject to applicable
withholding laws or regulations then in force.
Buyer and
Seller further represent to the Escrow Agent that the transaction memorialized
in the Purchase Agreement does not constitute an installment sale requiring any
tax reporting or withholding of imputed interest or original issue discount to
the IRS or other taxing authority.
Any tax
returns required to be filed will be prepared and filed by Buyer with the IRS
and any other taxing authority as required by law, including but not limited to
any applicable reporting or withholding pursuant to the Foreign Investment in
Real Property Tax Act (“FIRPTA”). Buyer
and Seller acknowledge and agree that Escrow Agent shall have no responsibility
for the preparation and/or filing of any tax return or any applicable FIRPTA
reporting or withholding with respect to the Escrow Amount or any income earned
by the Escrow Amount. Escrow Agent shall withhold any taxes it deems
appropriate, including but not limited to required withholding
6
in
the absence of proper tax documentation, and shall remit such taxes to the
appropriate authorities.
8. Notices. All
notices, Consents, waivers and other communications required or permitted under
this Agreement shall be in writing and shall be deemed given to a party when (a)
delivered to the appropriate address by hand or by a nationally recognized
overnight courier service (costs prepaid); (b) sent by facsimile (with
confirmation by the transmitting equipment); or (c) received by the addressee,
if sent by certified mail, return receipt requested, in each case to the
following addresses and facsimile numbers and marked to the attention of the
person (by name or title) designated below (or to such other address, facsimile
number or person as a party may designate by notice to the other
parties):
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If
to Buyer, to:
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Best
Energy Services, Inc.
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0000
Xxxxx
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Xxxxx
0000
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Xxxxxxx,
Xxxxx 00000
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Attention:
Xxxxx Xxxxxxxx, President
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Facsimile
No.: (000) 000-0000
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Email:
xxxxxxxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
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with
a mandatory copy (which shall not constitute notice)
to:
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Xxxxxxx
Xxxxxx L.L.P.
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| 000 Xxxxxxxx Xxxxxx | |
| Xxxxx 0000 | |
| Xxxxxx, Xxxxx 00000 | |
| Attention: Xxxxxxxx X. Xxxx, Esq. | |
| Facsimile No.: (000) 000-0000 |
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If
to Seller, to:
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Xxxxxx
X. Xxxxxx
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000
Xxxxxxxxxx Xxxx
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| Xxxx, Xxxx 00000 | |
| Facsimile No.: (000) 000-0000 | |
| Email: xxxx@xxxxxxx.xxx |
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with
a mandatory copy (which shall not constitute notice)
to:
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| Xxxxxxx X. Xxxxxxxx, Esq. | |
| 1996 East 0000 Xxxxx, Xxx. 000 | |
| Xxxx Xxxx Xxxx, Xxxx 00000 | |
| Facsimile No.: (000) 000-0000 | |
| Email: xxxxxxxxx@xxx.xxx |
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| If to Escrow Agent, to: |
| JPMorgan Chase Bank, N.A. | |
| Escrow Services, TX2 S037 | |
| 000 Xxxx Xxxxxx, 0xx Xxxxx Xxxxx | |
| Xxxxxxx, Xxxxx 00000 | |
| Attention: Xxxx X. Xxxxxxx | |
| Facsimile No.: (000) 000-0000 |
Notwithstanding
the above, in the case of communications delivered to the Escrow Agent pursuant
to (a), (b) and (c) of this Section 8, such
communications shall be deemed to have been given on the date received by an
officer of the Escrow Agent or any employee of the Escrow Agent who reports
directly to any such officer at the above-referenced office. In the
event that the Escrow Agent, in its sole discretion, shall determine that an
emergency exists, the Escrow Agent may use such other means of communication as
the Escrow Agent deems appropriate. “Business Day” shall mean any day other than a
Saturday, Sunday or any other day on which the Escrow Agent located at the
notice address set forth above is authorized or required by law or executive
order to remain closed.
9. Jurisdiction;
Service of Process. Any Proceeding arising out of or relating
to this Agreement may be brought in the United States District Court located in
the State of New York, and each of the parties irrevocably submits to the
exclusive jurisdiction of each such court in any such Proceeding and waives any
objection it may now or hereafter have to venue or to convenience of forum,
agrees that all claims in respect of the Proceeding shall be heard and
determined only in any such court and agrees not to bring any Proceeding arising
out of or relating to this Agreement in any other court. Process in any
Proceeding referred to in the preceding sentence may be served on any party
anywhere in the world. The parties further hereby waive any right to a trial by
jury with respect to any lawsuit or judicial proceeding arising or relating to
this Agreement.
10. Counterparts;
Facsimile Transmission. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties transmitted by
facsimile, shall be deemed to be their original signatures for any purposes
whatsoever.
11. Section
Headings; Construction. The headings of sections in this Agreement are
provided for convenience only and will not affect its construction or
interpretation.
12. Waiver.
The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power or privilege under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such right, power or privilege, and
no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. To the maximum extent permitted
by applicable law, (a) no claim or right arising out of this Agreement or the
documents referred to in this Agreement can be discharged by one party, in whole
or in part, by a waiver or renunciation
8
of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this
Agreement.
13. Entire
Agreement and Modification. This Agreement supersedes all
prior agreements among the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement among the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by Buyer, Seller and Escrow Agent.
14. Governing
Law. This Agreement shall be governed by the laws of the State
of New York without regard to conflicts of law principles that would require the
application of any other law.
15. Force
Majeure. The Escrow Agent shall not be liable to any other party for
losses due to, or if it is unable to perform its obligations under the terms of
this Agreement because of, acts of God, fire, floods, strikes, equipment or
transmission failure, or other causes reasonably beyond its
control.
16. Compliance
with Court Orders. In the event that any escrow property shall
be attached, garnished or levied upon by any court order, or the delivery
thereof shall be stayed or enjoined by an order of a court, or any order,
judgment or decree shall be made or entered by any court order affecting the
property deposited under this Agreement, the Escrow Agent is hereby expressly
authorized, in its sole discretion, to obey and comply with all writs, orders or
decrees so entered or issued, which it is advised by legal counsel of its own
choosing is binding upon it, whether with or without jurisdiction, and in the
event that the Escrow Agent obeys or complies with any such writ, order or
decree it shall not be liable to any of the parties hereto or to any other
person, firm or corporation, by reason of such compliance notwithstanding such
writ, order or decree be subsequently reversed, modified, annulled, set aside or
vacated.
[Signature
Pages to Follow]
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In
Witness Whereof, the parties have executed and delivered this Agreement as of
the date first written above.
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Tax Certification:
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Taxpayer Identification Number (TIN): | 00-0000000 | Date: | February 14, 2008 |
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Name
& Address:
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Best Energy Services, Inc. |
| 0000 Xxxxx, Xxxxx 0000 | |
| Xxxxxxx, Xxxxx 00000 |
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Customer
is a (check one):
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Corporation
__x__
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Partnership____ | Individual/sole proprietor ____ | Trust_____ |
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Limited
liability company____
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Enter the tax classification (D=disregarded entity, C=Corporation, P=Partnership______ |
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Other
_________________
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Taxpayer
is (check if applicable):
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| _x_ Exempt from backup withholding |
| Under the penalties of perjury, the undersigned certifies that: |
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(1) the number shown above
is its correct Taxpayer Identification Number (or it is waiting for a
number to be issued to it);
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(2) it is not subject to
backup withholding because: (a) it is exempt from backup withholding or
(b) it has not been notified by the Internal Revenue Service (IRS) that it
is subject to backup withholding as a result of failure to report all
interest or dividends, or (c) the IRS has notified it that it is no longer
subject to backup withholding; and
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(3) the entity is a U.S.
person (including a U.S. resident alien).
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| (If the entity is subject to backup withholding, cross out the words after the (2) above.) |
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Investors
who do not supply a tax identification number will be subject to backup
withholding in accordance with IRS regulations.
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| Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. |
Buyer:
Best
Energy Services, Inc.
/s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx, Chief Executive Officer
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Tax Certification:
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Taxpayer Identification Number (TIN): | ###-##-#### | Date: | February 14, 2008 |
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Name
& Address:
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Xxxxxx X. Xxxxxx |
| 000 Xxxxxxxxxx Xxxx | |
| Xxxx, Xxxx 00000 |
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Customer
is a (check one):
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Corporation
____
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Partnership____ | Individual/sole proprietor __x__ | Trust_____ |
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Limited
liability company____
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Enter the tax classification (D=disregarded entity, C=Corporation, P=Partnership______ |
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Other
_________________
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Taxpayer
is (check if applicable):
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| _x_ Exempt from backup withholding |
| Under the penalties of perjury, the undersigned certifies that: |
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(1) the number shown above
is its correct Taxpayer Identification Number (or it is waiting for a
number to be issued to it);
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(2) it is not subject to
backup withholding because: (a) it is exempt from backup withholding or
(b) it has not been notified by the Internal Revenue Service (IRS) that it
is subject to backup withholding as a result of failure to report all
interest or dividends, or (c) the IRS has notified it that it is no longer
subject to backup withholding; and
|
|
(3) the entity is a U.S.
person (including a U.S. resident alien).
|
| (If the entity is subject to backup withholding, cross out the words after the (2) above.) |
|
Investors
who do not supply a tax identification number will be subject to backup
withholding in accordance with IRS regulations.
|
| Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. |
Seller:
Xxxxxx
X. Xxxxxx
/s/
Xxxxxx X. Xxxxxx
Xxxxxx X.
Xxxxxx, individually
Escrow
Agent:
JPMorgan
Chase Bank, N.A.
/s/ Xxx Xx
Name:
Xxx Xx
Title:
Vice President
Schedule
1
to
|
Investment: [specify]
|
|
[X]
|
JPMorgan
Chase Bank Money Market Account;
|
|
[
]
|
A
trust account with JPMorgan Chase
Bank;
|
|
[
]
|
A
money market mutual fund, including without limitation the JPMorgan Fund
or any other mutual fund for which the Escrow Agent or any affiliate of
the Escrow Agent serves as investment manager, administrator, shareholder
servicing agent and/or custodian or subcustodian, notwithstanding that (i)
the Escrow Agent or an affiliate of the Escrow Agent receives fees from
such funds for services rendered, (ii) the Escrow Agent charges and
collects fees for services rendered pursuant to this Escrow Agreement,
which fees are separate from the fees received from such funds, and (iii)
services performed for such funds and pursuant to this Escrow Agreement
may at times duplicate those provided to such funds by the Escrow Agent or
its affiliates.
|
| (Will need to specigy name of Fund) |
Schedule
2
to
|
|
Telephone
Numbers for Call-Backs and
|
|
|
Persons Designated to
Give or Confirm Funds Transfer
Instructions
|
|
|
If to
Buyer:
|
|
Name
|
Telephone
Number
|
Signature Specimen | |
|
1.
|
Xxxxx
Xxxxxxxx
|
(000)
000-0000
|
/s/ Xxxxx Xxxxxxxx |
|
2.
|
Xxxxxxx
Xxxxxxx
|
(000)
000-0000
|
/s/ Xxxxxxx Xxxxxxx |
|
|
If to
Seller:
|
|
Name
|
Telephone
Number
|
Signature Specimen | |
|
1.
|
Xxx
Xxxxxx
|
(000)
000-0000
|
/s/ Xxx Xxxxxx |
| 2. | Xxxx Xxxxxx |
(000)
000-0000
|
/s/ Xxxx Xxxxxx |
Telephone
call-backs shall be made to Buyer and Seller if Joint Written Instructions are
required pursuant to this Agreement. All funds transfer instructions
must include the signature of the persons authorizing said funds transfer and
must not be the same person confirming said transfer.
Schedule
3
to
Schedule
of Fees for Escrow Agent Services
Based
upon our current understanding of your proposed transaction, our fee proposal is
as follows:
| Account Acceptance Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
Waived
|
Encompassing
review, negotiation and execution of governing documentation, opening of the
account, and completion of all due diligence documentation. Payable
upon closing.
| Annual Administration Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
$2,000.00
|
The
Administration Fee covers our usual and customary ministerial duties, including
record keeping, distributions, document compliance and such other duties and
responsibilities expressly set forth in the governing documents for each
transaction. Payable upon closing and annually in advance thereafter,
without pro-ration for partial years.
ACTIVITY FEES:
Activity fees will not be assessed for any year in which twelve or fewer
transactions occur.
|
Disbursements
|
|
|
Per
Check. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .
|
$ 35.00 |
|
Per
Wire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . U.S.
|
$ 35.00 |
| International | $ 100.00 |
|
Receipts
|
|
| Per Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
$10.00
|
| Investments | |
| Per directed buy/sell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
$75.00
|
|
The
Investments fee will be waived if a JPMorgan Chase money market deposit
account or interest-bearing trust account is selected.
|
|
| 1099 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | $15.00 |
Extraordinary
Services and Out-of Pocket Expenses
Any
additional services beyond our standard services as specified above, and all
reasonable out-of-pocket expenses including attorney's or accountant’s fees and
expenses will be considered extraordinary services for which related costs,
transaction charges, and additional fees will be billed at the Bank's then
standard rate.
Disclosure
& Assumptions
|
·
|
Please
note that any proposed fees quoted herein are indicative and not intended
to be binding or to form an agreement between ourselves. This fee quote is
subject to a review of the transaction documents and completion of an
internal due diligence review. JPMorgan reserves the right to revise,
modify, change and supplement the fees quoted herein. All fee
arrangements are subject to a definitive and binding agreement between
parties.
|
|
·
|
The
escrow deposit shall be continuously invested in a JPMorgan Chase Bank
interest-bearing trust account, a JPMorgan Chase Bank money market deposit
account (“MMDA”), or a JPMorgan Money Market Fund. The Escrow Agent will
provide compensation on balances in the escrow account at a rate
determined by the Escrow Agent from time to time. The Annual
Administration Fee would include a supplemental charge up to 25 basis
points on the escrow deposit amount if another investment option were
chosen.
|
|
·
|
The
Parties acknowledge and agree that they are permitted by U.S. law to make
up to six (6) pre-authorized withdrawals or telephonic transfers from an
MMDA per calendar month or statement cycle or similar
period. If the MMDA can be accessed by checks, drafts, bills of
exchange, notes and other financial instruments (“Items”), then no more
than three (3) of these six (6) transfers may be made by an
Item. The Escrow Agent is required by U.S. law to reserve the
right to require at least seven (7) days notice prior to a withdrawal from
a money market deposit account.
|
|
·
|
Payment
of the invoice is due upon receipt.
|
Compliance
|
·
|
To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity that
opens an account. We may ask for information that will enable
us to meet the requirements of the
Act.
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